Justices meet today to choose course on gay marriage

WASHINGTON — The running fight over gay marriage is shifting from the ballot box to the Supreme Court.

Three weeks after voters backed same-sex marriage in three states and defeated a ban in a fourth, the justices are meeting today to decide whether they should deal sooner rather than later with the claim that the Constitution gives people the right to marry regardless of sexual orientation.

The court also could duck the ultimate question for now and instead focus on a narrower but still important issue: whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.

The court could announce its plans as soon as this afternoon.

Gay marriage is legal, or will be soon, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia.

Federal courts in California have struck down the state's constitutional ban on same-sex marriage, but that ruling has not taken effect while the issue is being appealed.

But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example, in May.

The biggest issue the court could decide to confront comes in the dispute over California's Proposition 8, the constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry.

The case could allow the justices to decide whether the U.S. Constitution's guarantee of equal protection means that the right to marriage cannot be limited to heterosexuals.

A decision in favor of gay marriage would set a national rule and overturn every state constitutional provision and law banning same-sex marriages. A ruling that upheld California's ban would be a setback for gay marriage proponents in the nation's largest state, although it would leave open the state-by-state effort to allow gays and lesbians to marry.

Throughout U.S. history, the court has tried to avoid getting too far ahead of public opinion. The high court waited until 1967 to strike down laws against interracial marriage in the 16 states that still had them.

Some court observers argue that the same caution will prevail in the California case.

“What do they have to gain by hearing this case? Either they impose same sex marriage on the whole country, which would create a political firestorm, or they say there's no right to same-sex marriage, in which case they are going to be reversed in 20 years and be badly remembered,” said Andrew Koppelman, a professor of law and political science at Northwestern University.

“They'll be the villains in the historical narrative,” said Koppelman, who signed onto a brief urging the justices not to hear the California case.

But some opponents of gay marriage say the issue is too important, and California too large a state, for the court to take a pass.

“The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is,” said Brian Brown, president of the National Organization for Marriage.

Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.

The law, passed in 1996 and signed by President Bill Clinton, defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits available to heterosexual couples.

Four federal district courts and two courts of appeal have overturned the provision. The justices almost always will hear a case in which a federal law has been struck down.

After the Obama administration said it no longer would defend the provision, Republicans in the House of Representatives stepped in to take up the defense of the law in court.